Citation Nr: 21031367 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 14-09 266 DATE: May 21, 2021 ORDER Entitlement to an evaluation in excess of 70 percent for persistent depressive disorder with generalized anxiety disorder and alcohol use disorder is denied. FINDING OF FACT Throughout the appeal period, the Veteran's persistent depressive disorder with generalized anxiety disorder and alcohol use disorder does not more closely approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to an evaluation in excess of 70 percent for persistent depressive disorder with generalized anxiety disorder and alcohol use disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.126, 4.130, Diagnostic Code 9433. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 1954 to January 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction of the case is now before the RO in Togus, Maine. In the May 2012 rating decision, the RO denied a higher than 50 percent evaluation for major depressive disorder. The Veteran appealed for a higher evaluation. The Veteran testified before the undersigned Veterans Law Judge at an October 2017 Travel Board hearing. A transcript of this hearing is of record. In December 2017, the Board found that the issue of entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) had been raised by the record; and remanded the issues of entitlement to a higher evaluation for major depressive disorder and entitlement to a TDIU for additional development. As the actions specified in the remand have been substantially completed, the matters have been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). During the pendency of the appeal, the RO issued a January 2019 rating decision granting a higher 70 percent evaluation for persistent depressive disorder with generalized anxiety disorder and alcohol use disorder, effective September 13, 2010. The Veteran continued to appeal for a higher evaluation for persistent depressive disorder with generalized anxiety disorder and alcohol use disorder. AB v. Brown, 6 Vet. App. 35 (1993) (holding that a claimant is presumed to be seeking the maximum rating). In a February 2019 rating decision, the Veteran was granted entitlement to a TDIU, effective September 13, 2010. Because the Veteran's TDIU claim has been granted for the entire disability rating period on appeal, this issue is no longer on appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018). Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Evaluation 1. Entitlement to an evaluation in excess of 70 percent for persistent depressive disorder with generalized anxiety disorder and alcohol use disorder The Veteran asserts that his service-connected mental health disorder is worse than his current evaluation reflects. At an October 2017 Board hearing, the Veteran testified that he had nightmares, which caused him to be unable to sleep. He had anxiety attacks during the day, which caused him to hide in his garage so no one would see him. He had worsening symptoms of nervousness. He reported that he installed security cameras and an electronic doorbell. He described how he smoked and drank wine to relax. He reported not socializing with friends or engaging in any activities. He was irritable and had angry outbursts. He had memory problems where he would forget where he parked his car. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The relevant temporal focus for adjudicating the level of disability of an increased rating claim begins one year before the claim was filed. As the instant claim for an increased rating was received in February 2011, the period for consideration will include evidence one year prior to the receipt of claim. For the relevant appeal period, the Veteran's persistent depressive disorder with generalized anxiety disorder and alcohol use disorder has been currently evaluated as 70 percent disabling, effective September 13, 2010, under 38 C.F.R. § 4.130, Diagnostic Code 9433. Under Diagnostic Code 9433, which is governed by a General Rating Formula for Mental Disorders, a 10 percent rating is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and/or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and/or difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and/or inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126; see Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. Id. The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 11617 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. VA must engage in a holistic analysis that assesses the severity, frequency, and duration of the signs and symptoms of the psychiatric disability; quantifies the level of occupational and social impairment caused by those symptoms; and assigns an evaluation that most nearly approximates the level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The Board notes that the Diagnostic and Statistical Manual, Fourth Edition, allowed for the assignment of Global Assessment of Functioning (GAF) scores, which are a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. However, VA regulations were amended to adopt the Diagnostic and Statistical Manual, Fifth Edition (DSM-5), which eliminated the use of GAF scores for evaluating mental illness. 80 Fed. Reg. 14,308 (Mar. 19, 2015). As GAF scores are no longer held to be an effective method of evaluating the severity of psychiatric disabilities, the Board will not rely on any GAF scores in adjudicating the present claim. Golden v. Shulkin, 29 Vet. App. 221, 22426 (2018). Based on a careful review of all the subjective and clinical evidence, the Board finds that throughout the appeal period, the Veteran's persistent depressive disorder with generalized anxiety disorder and alcohol use disorder does not warrant a total evaluation under the General Rating Formula for Mental Disorders. In other words, the Veteran's persistent depressive disorder with generalized anxiety disorder and alcohol use disorder does not more closely approximate total occupational and social impairment. In that regard, the Board finds that the following provides the most probative evidence demonstrating the frequency, severity, and duration of the Veteran's mental health symptomatology as well as its functional impact: (1) reports at a September 2010 VA clinic visit that the Veteran had nightmares (almost every night); irritability (almost fought with someone who cut him off and took his parking spot); difficulty sleeping (averaged two to three hours of disturbed sleep and napping three to four times during the day); suspiciousness; depression (all the time); hypervigilance (installed camera and burglar alarm system in his house); and difficulty forming close relationships; (2) clinical findings at an April 2011 VA clinic visit that the Veteran presented with intrusive combat memories, flashbacks, numbing of feeling, nightmares (occurring five times last week and two times that week), and waking his wife when his nightmares were very severe; (3) findings at an April 2012 VA psychiatric examination that the Veteran struggled with boredom, had no odd jobs or volunteer work, and experienced anxiety, panic attacks that occurred weekly or less often, and chronic sleep impairment; (4) a September 2012 opinion from the Veteran's VA treating psychologist, in which the VA psychologist, who had been treating him since February 2011, found that the severity of the Veteran's symptoms made it extremely difficult for him to venture into public places and to be around large groups of people; that he rarely left his home and was unable to function effectively in employment and interpersonal situations due to persistent depressive episodes and the severe anxiety he experienced on a regular basis; and that he had many episodes of suicidal thoughts, but no suicide attempts; (5) determination by the Veteran's treating psychologist at a May 2013 VA clinic visit that the Veteran's depressive and PTSD symptoms appeared to have increased in response to a number of setbacks after attempts to socialize, volunteer and/or find paid employment; and that the Veteran had significant cognitive impairments; (6) reports at an October 2016 VA clinic visit that the Veteran had recurring nightmares over the past year; experienced an inability to fall asleep after awakening from a nightmare; screamed and yelled at people; felt no interest in activities; and described getting into a fist fight with someone two years ago, after he cut him off on the road; (7) findings at a January 2018 VA clinic visit that the Veteran continued to experience intrusive thoughts, difficulty with nightmares (four to five times per week), difficulty sleeping (sleeping three hours per night), irritability, depression, decreased interest or pleasure in activities, motivation problems, feeling tired, no energy, difficulty concentrating and making decisions, memory problems, exaggerated startle response, avoidance of distressing memories, thoughts, and feelings about trauma, and avoidance of external reminders of trauma; and (8) findings at a January 2019 VA psychiatric examination that the Veteran worried about everything ("mostly about losing [his] mind"); that he got nervous or easily annoyed ("had to sit alone in [his] garage"); that his anxiety attacks caused a need to escape; that he was easily irritable and avoided people to avoid arguments or physical fights; that he had increased memory impairment (forgot names, numbers, and where he parked his car); had no "ambition" or motivation; had suicidal thoughts, but he expressed an inability to commit it; had a depressed mood; had panic attacks that occurred weekly or less often; had chronic sleep impairment; and had impaired impulse control. As a preliminary matter, the Board notes that when the Veteran was awarded a higher 70 percent evaluation by the RO in its January 2019 rating decision, the RO took into consideration the evidence during the one-year period prior to the date of the claim. The RO found that the evidence during that one-year period was sufficient to warrant assigning a higher evaluation prior to the date of the increased rating claim. Therefore, the RO assigned the higher 70 percent evaluation, effective September 13, 2010. The Board agrees with that determination. However, despite the Veteran's persistent and debilitating symptomatology, the overwhelming evidence does not demonstrate that throughout the appeal period, his persistent depressive disorder with generalized anxiety disorder and alcohol use disorder is so incapacitating as to be consistent with the symptoms identified by the rating criteria for total occupational and social impairment. Although the Veteran had persistent thoughts of suicide, there were no indications that he was at risk of hurting himself. Further, his reports of having fought someone during a road rage incident appeared to be represent an isolated incident rather than any regularly dangerous behavior. Notably, the Veteran recognized his tendency to engage in verbal and physical altercations, so he avoided people and isolated himself from social interactions. He had significant memory impairment that caused him increased anxiety. His irritability and nervousness were so severe that he would escape to his garage to avoid being around people. Nevertheless, at no point throughout the appeal period did any of the Veteran's VA treating clinicians or either the April 2012 or January 2019 VA examiner find that the Veteran's overall mental health symptomatology was consistent with a total evaluation. Accordingly, the Board finds that there is no basis upon which to award a higher 100 percent evaluation for persistent depressive disorder with generalized anxiety disorder and alcohol use disorder under the General Rating Formula for Mental Disorders. Therefore, throughout the appeal period, the Board concludes that the Veteran's persistent depressive disorder with generalized anxiety disorder and alcohol use disorder is no more than 70 percent disabling. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran's higher than 70 percent evaluation claim for his persistent depressive disorder with generalized anxiety disorder and alcohol use disorder. Therefore, the benefit-of-the-doubt rule does not apply, and the higher evaluation claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Journet Shaw, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.